Ah, Winning Argument! How Did I Lose Thee? The Many Ways to Waive Claims or Defenses.

There are often winning arguments in lawsuits, but sometimes a claim or defense is still lost because the attorney did not think of the argument in time. Courts often find that an argument was made too late, and so a claim or defense was waived and the case is lost.

E-mail me at [email protected] for an Adobe Acrobat print of this blog entry, with the footnotes the blog software did not allow to be posted on-line.

In the course of reading several thousand published appellate decisions in Federal courts for fifteen volumes of Equal Employment Law Update, published by the Bureau of National Affairs (now Bloomberg BNA) for the American Bar Association Section of Labor and Employment Law from 1996 to 2007, and in the course of reading many hundreds more decisions for the annual updates on employment law I’ve done for several State Bars and for the National Employment Lawyers Association, I have been struck by the number of ways to lose a case besides, well, having a losing case.

Waivers happen. I am not speaking of the waivers associated with releases, which are generally protected by the “knowing and voluntary” standard, or the waiver on a ticket stub that may or may not be enforceable, but the unknowing and unintended waivers that arise in litigation, the kind that bar a winning argument or defense because it was raised too late. The following recent labor and employment law examples — see the footnotes in the downloadable attachment — show that waivers by both sides do happen, when an argument:

was stipulated to be inapplicable;

was appealed by the wrong person, such as when a sanction running only against an attorney is appealed only by a party and not by counsel;

was raised on appeal, but only by incorporating a submission to the district court;

was raised at the proper time, but was not adequately developed;

involved an erroneous jury instruction that was not objected to below and can now be reviewed only for plain or clear error, to prevent manifest injustice;

was not briefed at all;

was raised for the first time in oral argument on appeal;

was raised for the first time in a Federal Rules of Appellate Procedure Rule 28(j) letter after briefing was completed;

was raised for the first time in a reply brief on appeal, meaning that the opponent has not been given a fair opportunity to respond to it before the argument;

was raised for the first time in a petition for rehearing of the panel decision;

was not addressed in appellant’s reply brief on appeal, where the appellee raised the issue in its brief;

was raised for the first time on appeal, meaning that the lower court has been sandbagged;

was raised below for the first time in a motion to reconsider summary judgment;

was raised below for the first time in oral argument;

was raised for the first time in objections to a Magistrate Judge’s recommendation for the grant of summary judgment, meaning that the Magistrate Judge has been sandbagged; or

was not raised in objections to a Magistrate Judge’s recommendation for the grant of summary judgment.

Sometimes, a court will excuse a waiver. That will be the subject of a later blog posting.

This topic has teeth even in advance of the waiver. When I am acting as a mediator, I cannot ethically tell the plaintiff that she or he is overlooking a powerful additional claim or way of shaping the existing claim, and cannot tell the defendant that it is overlooking a major flaw in the plaintiff’s case or a powerful defense. What I can do for each side is to point out the risks of continued litigation. My most persuasive tool with a recalcitrant party, where the opportunity exists, is to point out that the other side has not yet realized something that would greatly strengthen the position of the other side, but still has time to realize the error and correct it if the case does not settle. This tends to lead to a stronger interest in settling.

For now, the take-away is that it is important for attorneys on both sides of a case to do some serious thinking about the issues in the beginning of the case, and not wait until it is too late. Few things are more dangerous than concluding, too early, that a claim or defense is a surefire “slam dunk.”

E-mail me at [email protected] for an Adobe Acrobat print of this blog entry, with the footnotes the blog software did not allow to be posted on-line.

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